HKSAR v. Sum Chun Wah

HCCC 338/2017

[2018] HKCFI 413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 338 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

I don't propose to keep you in suspense. You are going to prison for 5 years. You have to be sentenced on the basis that you are a relatively low-level dealer in hard drugs like ‘Ice’, ketamine, cocaine and heroin in order to feed your own drug habit. That that was your trade cannot be in doubt in view of the paraphernalia found in the living room of the flat in which you were living. That paraphernalia included a large number of empty resealable plastic bags and some electronic weighing scales. In addition, the drugs which were found there were themselves in various plastic bags, and the heroin was in a number of plastic bags and wraps.

You claimed to the police that some of the drugs were for you own consumption, and that the others were to be delivered to your friends. Indeed, today your counsel said that you were intending to sell them. I shall come shortly to those drugs which you claim were for your own consumption. But your claim that the other drugs were to be sold to your friends is not a good reason for giving you a lighter sentence. The courier will invariably have a role no less important than others in the distribution chain such as those who cut up the drugs or pack them. Nor is the fact that they were to be so sold to what you called your friends a mitigating factor. When low-level dealers refer to their friends, they tend to mean either their long-established customers or that they only sell to people they know to avoid being caught selling to an undercover police officer.

You will have been told that the Court of Appeal has laid down guidelines for the appropriate sentence for people who traffic in drugs. The guidelines are based on the amount of the drugs involved. Although the court doesn't look at the weight as a whole, it focusses on the narcotic content of the drugs. The weight of the narcotic content of the drugs in your case was about six and a half grammes of ‘Ice’, 33 and a half grammes of ketamine, 10 grammes of cocaine, and almost 10 grammes of heroin.

I acknowledge that had you been arrested a week earlier or a week later, the quantities of drugs you might then have had might have been very different. It was therefore a matter of chance that on this particular occasion you happened to have these quantities of drugs, but what you had at the time of your arrest is the only basis on which the court can sentence you.

The guidelines say that the appropriate range for someone who is convicted of trafficking in up to 10 grammes of ‘Ice’ is 3 to 7 years' imprisonment. The appropriate range for someone who is convicted of trafficking in between 10 and 50 grammes of ketamine is 4 to 6 years' imprisonment. The appropriate sentence for someone who is convicted of trafficking in 10 grammes of cocaine is 5 years' imprisonment. And the appropriate range for someone who is convicted of trafficking in up to 10 grammes of heroin is 2 to 5 years' imprisonment. Those are the appropriate ranges of sentences for someone who has been convicted after pleading not guilty. It goes without saying that your offences are far too serious for rehabilitation in a drug addiction treatment centre for a term of up to 12 months to be appropriate.

You are the classic small-time dealer in drugs contemplated by the guidelines, and there is, in my opinion, no reason for departing from the guidelines in your case, though it wouldn't be fair if I simply took the appropriate sentence for each of the drugs you were trafficking in and then aggregated them. The fairer and more realistic approach is to take the longest sentence which would have been passed for the drugs which you were trafficking in if you had to be sentenced just for them, in this case the ‘Ice’, and then to take into account the fact that you were trafficking in a cocktail of other drugs.

Had I been sentencing you for trafficking in the ‘Ice’ alone, I would have taken between 5½ and 6 years' imprisonment as my starting point. I bear in mind that the Court of Appeal has said that trafficking in a variety of drugs is an aggravating factor, but at the same time I must be careful not to sentence you twice over for the same thing.

In the light of the nature of your trafficking, the quantity and variety of the drugs found in your flat when you were arrested, their value, or should I say, their street value which was in the region of $50,000, the fact that the quantities of ketamine and ‘Ice’ you had were towards the upper end of the appropriate ranges, and the fact that this is by no means the first time that you are having to go to prison for your involvement with drugs, I propose to take seven and a half years' imprisonment as my starting point. In reaching that starting point, I have born in mind what the Court of Appeal said in Chan Yuk Leong CACC 318/2013 about the various ways of checking whether the starting point the court has in mind in cases such as these is broadly correct.

I return to your claim that some of the drugs, though not the ketamine, were for your own use. This is a claim which is easy for you to make and difficult for the prosecution to challenge. Indeed, the prosecution do not challenge it, although they do not accept it either. There is said to be some support for your claim in the results of the analysis of the urine samples taken from you when you were admitted to the Lai Chi Kok Reception Centre. They tested positive for various drugs which were among the active ingredients of ‘Ice’ and heroin, though the samples were not tested for the presence of cocaine.

But the fact that you are a drug-user does not, of course, mean that any of these drugs were for your own use. And it is noteworthy that all the drugs had been packed, some had even been packaged for sale in individual wraps, and there were virtually no items found in the flat associated with the consumption of drugs. Moreover, even if at the time you had it in mind that some of the drugs were to be for your own use, there was also the risk, sometimes called the latent risk, that you would have changed your mind and sold them yourself.

There is something else which needs to be said. Even if some of these drugs were for yourself, the proportion of them which you intended to use had to be significant if your sentence is to be reduced. You accept that none of the ketamine was for your own use. You claim that only 4 grammes of the heroin out of a total of 17.45 grammes when looking at the weight as a whole were for your own consumption, that only 2 grammes of the cocaine out of a total of 11.3 grammes were for your own consumption, and that only 2 grammes of the ‘Ice’ out of a total of 6.79 grammes were for your own consumption. I do not regard these amounts as a significant proportion of all the drugs you were trafficking in.

For all these reasons, therefore, I am not prepared to reduce your sentence to reflect your claim. You are entitled, though, to have your sentence reduced by one-third because of your plea of guilty on the return date when you were committed to the High Court for sentence. That means that the sentence which I pass for this offence of trafficking in dangerous drugs is 5 years' imprisonment.